Citation Nr: 0909928
Decision Date: 03/17/09 Archive Date: 03/26/09
DOCKET NO. 05-21 977 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been received to
reopen the Veteran's claim of entitlement to service
connection for an acquired psychiatric disorder, to include
bipolar disorder and, if so, whether service connection is
warranted.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for bilateral hearing
loss.
4. Whether severance of entitlement to nonservice-connected
disability pension base on clear and unmistakable error was
warranted, to include entitlement to restoration of such
benefits.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K.S. Hughes, Counsel
INTRODUCTION
The Veteran served on active duty from February 1991 to
October 1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
Subsequent to the November 2007 Board remand, the Veteran
perfected an appeal with respect to a July 2007
Administrative Decision which found that the August 26, 1997,
rating decision and January 15, 1998, award granting
nonservice-connected pension was clearly and unmistakably
erroneous due to administrative error because the Veteran did
not meet basic eligibility requirements. Accordingly, this
issue is properly before the Board.
The Veteran provided testimony with respect to the issues on
appeal, to include his entitlement to nonservice-connected
pension, at his videoconference hearing, which was held at
the RO in January 2009 before the undersigned Veterans Law
Judge.
On February 11 and 12, 2009, the Board received additional
evidence from the Veteran. This evidence has not been
reviewed by the agency of original jurisdiction. However,
the Veteran included a written waiver of this procedural
right with the evidence received on February 11, 2009.
38 C.F.R. §§ 19.37, 20.1304 (2008). Although a waiver was
not included with the evidence received on February 12, 2009,
this evidence as well as the evidence received on February
11, 2009, are duplicative of evidence already in the file,
and, as such, a remand for a waiver is unnecessary. Thus,
the Board will consider the newly submitted evidence in the
first instance.
The issues of entitlement to service connection for an
acquired psychiatric disorder, to include bipolar disorder,
and hearing loss as well as whether severance of entitlement
to nonservice-connected disability pension base on clear and
unmistakable error was warranted, to include entitlement to
restoration of such benefits, are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A March 1996 rating decision denied service connection
for an acquired psychiatric disorder on the basis that the
evidence was negative for an acquired psychiatric disorder.
The Veteran did not initiate an appeal of the adverse
determination.
2. The evidence received since the March 1996 rating
decision is new and relates to an unestablished fact
necessary to substantiate the claim, is neither cumulative
nor redundant of the evidence of record at the time of the
last prior final denial, and raises a reasonable possibility
of substantiating the claim for service connection for an
acquired psychiatric disorder, to include bipolar disorder.
3. The Veteran has not been shown to currently have tinnitus
that is causally or etiologically related to his military
service.
CONCLUSIONS OF LAW
1. The March 1996 rating decision, which denied entitlement
to service connection for an acquired psychiatric disorder,
is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§§ 20.302, 20.1103 (2008).
2. The Veteran has submitted new and material evidence
sufficient to reopen the claim of entitlement to service
connection for an acquired psychiatric disorder, to include
bipolar disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156(a) (2008).
3. Tinnitus was not incurred in active service. 38 U.S.C.A.
§§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102,
3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
As provided by the Veterans Claims Assistance Act of 2000
(VCAA), VA has duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). In
accordance with 38 C.F.R. § 3.159(b)(1), proper notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; and (3) that the claimant is
expected to provide. Notice should be provided to a claimant
before the initial unfavorable decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
When, however, for whatever reason, there was no or
inadequate pre-decisional VCAA notice, the United States
Court of Appeals for the Federal Circuit (Federal Circuit
Court) recently held that a statement of the case (SOC) or
supplemental SOC (SSOC) can constitute a "readjudication
decision" that complies with all applicable due process and
notification requirements if adequate VCAA notice is provided
prior to the SOC or SSOC. See Mayfield v. Nicholson, 499
F.3d 1317 (Fed. Cir. 2007) (Mayfield IV). As a matter of
law, the provision of adequate VCAA notice prior to a
readjudication "cures" any timing problem associated with
inadequate notice or the lack of notice prior to an initial
adjudication. See also Prickett v. Nicholson, 20 Vet.
App. 370, 376 (2006).
Here, a letter dated in August 2001 and provided to the
appellant prior to the June 2003 rating decision on appeal
satisfied the VCAA's duty to notify provisions as this letter
discussed the requirements for establishing his entitlement
to service connection for his claimed disorders.
Additionally, since the Board is reopening the claim of
entitlement to service connection for an acquired psychiatric
disorder on the basis of new and material evidence, there
need not be any discussion of whether the Veteran received
VCAA notice sufficient to satisfy the requirements of Kent v.
Nicholson, 20 Vet. App. 1 (2006), including insofar as
apprising him of the specific reasons his claim was
previously denied so he could respond by submitting evidence
addressing these shortcomings.
Keeping in mind the Veteran's claims arise in the context of
him trying to establish entitlement to service connection,
the 38 U.S.C.A. § 5103(a) notice requirements apply to all
five elements of his service-connection claim - including the
downstream disability rating and effective date. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd
sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). See
also, Dunlap v. Nicholson, 21 Vet. App. 112 (2007). There is
a Dingess letter in the file, dated in December 2008,
discussing these downstream elements. The Veteran did not
provide any additional evidence subsequent to this notice to
warrant readjudicating his claim and providing another SSOC.
See, e.g., Medrano v. Nicholson, 21 Vet. App. 165, 172 (2007)
(where after VA provides a content-compliant VCAA notice (on
all requisite notice elements) - albeit in an untimely manner
- and a claimant subsequently informs VA there is no further
evidence to submit, the failure by the RO to conduct a
subsequent readjudication is not prejudicial because the
result of such a readjudication would be no different than
the previous adjudication). Moreover, since the claim for
service connection for tinnitus is being denied, no
downstream disability rating or effective date will be
assigned with respect to this issue.
The Board also concludes that VA's duty to assist has been
satisfied.
With respect to the duty to assist, the RO obtained the
Veteran's service, VA, and private treatment records, he has
been afforded a VA examination with respect to his
psychiatric claim, and he has provided his written
communications and hearing testimony. As there is no
indication or allegation that relevant evidence remains
outstanding, the Board finds that the duty to assist has been
met. 38 U.S.C.A. § 5103A.
The Board acknowledges that, to date, VA has not provided the
Veteran an examination or sought a medical opinion with
respect to his tinnitus claim. As will be discussed in
detail below, however, in light of the uncontroverted facts,
the Board finds that the evidence, which indicates he did not
receive treatment for tinnitus in service and was not
diagnosed with tinnitus until many years after service
discharge, an examination is unnecessary to decide this
claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006),
citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
The Board has thoroughly reviewed all the evidence in the
Veteran's claims folder. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
evidence submitted by the Veteran or on his behalf. See
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, with respect to his
claims. The Veteran must not assume that the Board has
overlooked pieces of evidence that are not explicitly
discussed herein. See Timberlake v. Gober, 14 Vet. App. 122
(2000) (the law requires only that the Board address its
reasons for rejecting evidence favorable to the Veteran).
New and Material Evidence
In order to reopen a claim which has been denied by a final
decision, the claimant must present new and material
evidence. 38 U.S.C.A. § 5108. New and material evidence
means evidence not previously submitted to agency
decisionmakers; which relates, either by itself or when
considered with previous evidence of record, to an
unestablished fact necessary to substantiate the claim; which
is neither cumulative nor redundant of the evidence of record
at the time of the last prior final denial of the claim
sought to be reopened, and which raises a reasonable
possibility of substantiating the claim. 38 C.F.R.
§ 3.156(a). To reopen a previously disallowed claim, new and
material evidence must be presented or secured since the last
final disallowance of the claim on any basis, including on
the basis that there was no new and material evidence to
reopen the claim since a prior final disallowance. See Evans
v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of
reopening a claim, the credibility of newly submitted
evidence is generally presumed. See Justus v. Principi, 3
Vet. App. 510, 513 (1992) (in determining whether evidence is
new and material, "credibility" of newly presented evidence
is to be presumed unless evidence is inherently incredible or
beyond competence of witness).
The Veteran is seeking to reopen his claim of entitlement to
service connection for an acquired psychiatric disorder, to
include bipolar disorder. The claim for an acquired
psychiatric disorder was originally denied in a March 1996
rating decision, on the basis that the evidence was negative
for a psychiatric disorder. The Veteran did not appeal the
March 1996 rating decision; thus, it became final and binding
on him based on the evidence then of record. 38 U.S.C.A.
§ 7105 (West 2002); 38 C.F.R. §§ 3.150(d), 20.200, 20.302,
20.1100, 20.1103 (2008).
The Board finds that a statement from a VA physician,
received in September 2000, indicating that the Veteran
suffers from bipolar disorder and that it is likely that this
condition existed while he was in the service, represents
evidence that is new, not cumulative or redundant. In
addition, a March 2007 addendum to a March 2007 report of VA
mental disorders examination, which includes the conclusion
that the Veteran's bipolar disorder was a pre-existing
condition with symptoms first appearing during his teenage
years (pre-military), is also new, not cumulative or
redundant. This newly submitted evidence is also material
because it suggests that the Veteran's diagnosed bipolar
disorder is etiologically linked to his service or that it
was aggravated as a result of such service. In this context,
this medical evidence is new and is not cumulative or
redundant. Moreover, this newly submitted evidence when
considered with the previous evidence of record, or by
itself, relates to an unestablished fact that is necessary to
substantiate the claim, because it tends to show that the
Veteran's diagnosed bipolar disorder is etiologically linked
to his service. As a result, it raises a reasonable
possibility of substantiating the claim.
For these reasons, the Board determines the medical evidence
submitted subsequent to the March 1996 rating decision is
"new and material" as contemplated by 38 C.F.R. § 3.156(a),
and provides a basis to reopen the claim of entitlement to
service connection for a bipolar disorder. 38 U.S.C.A.
§ 5108.
Having reopened this claim, the Board has considered whether
de novo Board action is appropriate at this time. However,
as indicated below, the Board has preliminarily determined
that additional development is necessary. A final Board
decision on this claim will therefore not be issued until
such development is completed.
Service Connection
The Veteran contends that he has tinnitus related to service.
He specifically asserts that tinnitus began in service.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110. That an injury or disease
occurred in service is not enough; there must be chronic
disability resulting from that injury or disease. If there
is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
Service treatment records are negative for any complaints or
findings of tinnitus. The examination report at service
discharge did not note tinnitus and on the Report of Medical
History at that time, the Veteran indicated no to the inquiry
have you ever had or have you now ear, nose, or throat
trouble. Moreover, upon audiology consultation in August
1992, the Veteran specifically denied tinnitus or dizziness.
The first indication of tinnitus in the record was noted in
the February 2000 report of private audiological evaluation.
Based on review of the record, the Board finds that service
connection for tinnitus is not warranted. While the Veteran
currently has tinnitus, there is no competent medical
evidence it is related to service. Service treatment records
are silent for any complaints or findings of tinnitus. The
first indication of tinnitus in the record is over seven
years after service discharge. In view of the lengthy period
without treatment, there is no evidence of continuity of
symptomatology and this weighs against the claim. See Maxson
v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy
period of absence of medical complaints for condition can be
considered as a factor in resolving claim); see also Mense v.
Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did
not err in denying service connection when the veteran failed
to provide evidence which demonstrated continuity of
symptomatology, and failed to account for the lengthy time
period for which there is no clinical documentation of his
low back condition). Furthermore, there is no opinion which
provides a nexus between service and current tinnitus. Thus,
the criteria for service connection for tinnitus is not met.
The Veteran is competent to attest to his observations of his
disorder, including in-service exposure to aircraft noise.
See Layno supra; 38 C.F.R. § 3.159(a)(2). However, as a lay
person, he is not competent to diagnose any medical disorder
or render an opinion as to the cause or etiology of any
current disorder (i.e. that he currently has tinnitus related
to service) because he does not have the requisite medical
expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183,
186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
As the preponderance of the evidence is against the claim,
the benefit-of-the-doubt rule does not apply, and the claim
must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
ORDER
New and material evidence having been received, the Veteran's
claim for service connection for an acquired psychiatric
disorder, to include bipolar disorder, is reopened. To this
extent only, the appeal is granted.
Entitlement to service connection for tinnitus is denied.
REMAND
The Veteran seeks service connection for an acquired
psychiatric disorder, currently diagnosed as bipolar
disorder, and bilateral hearing loss as well as entitlement
to nonservice-connected pension.
Having reopened the Veteran's previously denied claim of
entitlement to service connection for an acquired psychiatric
disorder, the Board may proceed with adjudication of this
claim only after ensuring compliance with VA's duties to
notify and assist the Veteran. See 38 U.S.C.A. § 5103A(d)
(West 2002); 38 C.F.R. § 3.159(c)(4) (2008).
Generally, a pre-existing injury or disease will be
considered to have been aggravated by active service where
there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability was due to the natural progress of the disease.
38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2008).
The underlying disorder, as opposed to the symptoms, must be
shown to have worsened in order to find aggravation. See
Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
As noted above, a March 2007 addendum to a March 2007 report
of VA mental disorders examination includes the conclusion
that the Veteran's bipolar disorder was a pre-existing
condition with symptoms first appearing during his teenage
years (pre-military). In addition, the March 2007 mental
disorders examination report includes the opinion that the
Veteran's military service may have exacerbated his bipolar
disorder, but it usually worsens in adulthood anyway (as the
natural progression of the disorder), thus it would be
impossible to say that the military service exacerbated his
condition without resorting to mere speculation. In this
regard, it is noted that records from the Social Security
Administration include an August 1992 Report of Mental Status
Evaluation which discusses the veteran's pre-enlistment
mental health history as well as his psychiatric condition
during service. This evidence was not included among the
Veteran's service treatment records and his service personnel
records have not been obtained.
In addition, the Veteran's written communications as well as
his January 2009 hearing testimony include his recollection
that he received mental health treatment while serving in
Frankfurt, Germany, as well as at the Hospital Center,
Aguadilla, Puerto Rico, six months after his discharge from
active duty service. Copies of these treatment records
should be obtained and associated with the claims file.
The law mandates that VA has a duty to obtain all relevant VA
and Governmental records prior to adjudication of a claim.
38 U.S.C.A. § 5103A(c)(3).
Similarly, with respect to the Veteran's bilateral hearing
loss, it is noted that his enlistment examination reflects
bilateral hearing loss and slightly increased findings are
noted upon separation examination. However, although the
medical evidence suggests that the Veteran's pre-existing
bilateral hearing loss may have been aggravated during his
active duty service, he has not been afforded a VA
audiological examination in connection with this claim.
Following receipt of the Veteran's service personnel records
as well as any additional service treatment records, VA
examinations will be afforded the Veteran to determine if he
had a psychiatric disorder and/or bilateral hearing loss
which pre-existed his active military service and, if so,
whether these disorders were aggravated by such service.
McLendon v. Nicholson, 20 Vet. App. 79 (2006).
With respect to the claim of whether severance of entitlement
to nonservice-connected disability pension base on clear and
unmistakable error was warranted, to include entitlement to
restoration of such benefits, it is noted that a person who
originally enlists (enlisted person only) in a regular
component of the Armed Forces after September 7, 1980 and any
other person (officer as well as enlisted) who enters on
active duty after October 16, 1981 and who has not previously
completed a continuous period of active duty of at least 24
months or been discharged or released from active duty under
10 U.S.C. § 1171 (early out) who does not complete a minimum
period of active duty is not eligible for any benefit under
title 38, United States Code or under any law administered by
VA based on that period of service. 38 C.F.R. § 3.12a. The
term minimum period of active duty means, for the purposes of
this section, the shorter of the following periods: (1)
twenty-four months of continuous active duty. Non-duty
periods that are excludable in determining VA benefit
entitlement (e.g. see 38 C.F.R. § 3.15) are not considered as
a break in service for continuity purposes but are to
subtracted from total time served; (2) The full period for
which a person was called or ordered to active duty. See
38 C.F.R. § 3.12a (a).
The minimum period of active duty requirement does not apply:
(1) To a person who is discharged or released under 10 U.S.C.
§§ 1171 or 1173 (early out or hardship discharge); (2) To a
person discharged or released from active duty for a
disability adjudged service connected without presumptive
provisions of law, or who at the time of discharge had such a
service-connected disability, shown by official service
records, which in medical judgment would have justified a
discharge for disability; (3) To a person with a compensable
service-connected disability; (4) To the provision of a
benefit for or in connection with a service-connected
disability, condition, or death; and (5) To benefits under
chapter 19 of title 38, United States Code. See 38 C.F.R.
§ 3.12a (d).
The Veteran served on active duty from February 12, 1991 to
October 26, 1992, when he was discharged under honorable
conditions (general). Therefore, the Veteran served during a
period of war for more than 90 days. See 38 C.F.R. § 3.3.
However, as noted, the Veteran's service is also covered by
the provisions of 38 C.F.R. § 3.12a. The Veteran did not
serve the minimum period of active duty. The Veteran served
for less than 24 months of active duty. His DD Form 214
shows that the narrative reason for discharge was
unsatisfactory performance.
The Veteran was not discharged or released under 10 U.S.C.
§§ 1171 or 1173 (early out or hardship discharge). However,
the issues of service connection for an acquired psychiatric
disorder and bilateral hearing loss have not yet been
resolved and, in the event these claims for service
connection are resolved in the Veteran's favor, he may be
covered by an exception listed in 38 C.F.R. § 3.12a(d).
Accordingly, inasmuch as the determination of entitlement to
nonservice-connected pension rests on the determination of
whether the Veteran's acquired psychiatric disorder and/or
bilateral hearing loss was incurred in or aggravated by
service, resolution of this matter must be deferred until the
Veteran's service connection claims are decided.
Accordingly, the case is REMANDED for the following action:
1. Obtain the Veteran's service
personnel records and associate them
with the claims file. All attempts to
secure the Veteran's service personnel
records should be clearly documented in
the record.
2. Obtain the Veteran's service
treatment records from the medical
facility in Frankfurt, Germany, and
associate them with the claims file.
All attempts to secure these service
treatment records should be clearly
documented in the record.
3. Contact the Veteran and ask that he
provide the names and addresses of all
VA and non-VA medical care providers
who have treated him for his mental
health complaints since his discharge
from active duty service in October
1992. With any necessary authorization
from the Veteran, the RO should attempt
to obtain copies of pertinent treatment
records identified by the Veteran in
response to this request which have not
been previously secured. If no such
records can be found, ask for specific
confirmation of that fact. The
attention of the RO is specifically
directed to treatment records at the
Hospital Center, Aguadilla, Puerto
Rico, to which the Veteran has referred
in his written communications and
hearing testimony.
4. The appellant should be afforded a
VA psychiatric examination for the
purposes of determining the etiology of
his acquired psychiatric disorder, to
include bipolar disorder. The claims
folder must be provided to the examiner
for review in connection with the
examination. After examining the
appellant and reviewing the claims
folder, the examiner should comment on
whether the Veteran has a current
psychiatric disorder that is at least
as likely as not (50 percent
probability or higher) related to his
service in the military. This includes
indicating whether he clearly and
unmistakably had mental illness prior
to entering the military and, if he
did, whether there also is clear and
unmistakable evidence that his pre-
existing mental illness did not
increase in severity during service
beyond its natural progression.
Aggravation of a pre-existing
disability refers to an identifiable,
incremental, permanent worsening of the
underlying pathology, as contrasted to
temporary or intermittent flare-ups of
symptomatology. The examination report
should specifically reflect
consideration of the Veteran's August
1992 Report of Mental Status
Evaluation.
5. Arrange for a VA audiology
examination of the Veteran to determine
the nature and etiology of any current
bilateral hearing loss. The claims
folder must be provided to the examiner
for review in connection with the
examination. Following review of the
claims file and examination of the
Veteran, the examiner should render an
opinion as to whether the Veteran's
pre-existing bilateral hearing loss
underwent a permanent increase in
severity of the underlying disability
during the Veteran's active duty
service. If so, the examiner should
indicate whether the condition worsened
beyond the natural progress of the
disorder. Aggravation of a pre-
existing disability refers to an
identifiable, incremental, permanent
worsening of the underlying pathology,
as contrasted to temporary or
intermittent flare-ups of
symptomatology.
6. After completion of the above, a
review of the evidence received in
February 2009 at the Board without a
waiver of RO consideration, and any
additional development deemed
necessary, the RO should readjudicate
the claims for service connection for
an acquired psychiatric disorder and
bilateral hearing loss as well as the
claim of whether severance of
entitlement to nonservice-connected
disability pension base on clear and
unmistakable error was warranted, to
include entitlement to restoration of
such benefits. If any benefit sought
remains denied, the Veteran and his
representative should be furnished a
supplemental statement of the case and
be afforded the opportunity to respond.
Thereafter, the case should be returned
to the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The purpose of the examination requested in this remand is to
obtain information or evidence (or both) which may be
dispositive of the appeal. Therefore, the Veteran is hereby
placed on notice that pursuant to 38 C.F.R. § 3.655 (2008)
failure to cooperate by attending the requested VA
examination may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs